Over a year ago one of our employees at our preschool program became a surrogate mother. She was paid to cover her expenses for carrying the baby, and she had a beautiful baby boy who is now at his new home.
Now, only eight months later, she’s doing it again! Do we have to give her the same leave and job protection that we would give any other pregnant woman? And since she is, in effect, getting paid for being pregnant, does this qualify as a second job that is in conflict with her position with our agency?
A New One On Me
Dear A New One On Me:
What I don’t know is the etiquette on baby showers for surrogate moms! What I do know is this: pregnant surrogate mothers enjoy the same protection as any other pregnant employee. As you may know, nonprofits with 50 or more employees (working within 75 miles of each other) are covered under the federal Family Medical Leave Act (FMLA).
If the employee works at least 1,250 hours before taking a second leave of absence, she is entitled to unpaid leave for up to three months, continued medical benefits during the leave, and has the right to return to the same or similar position.
In addition, many states offer a pregnant woman additional leave beyond the three-month FMLA leave and guarantee return to the exact same job.
These more generous state laws can apply to your nonprofit if you have as few as five employees. So, in addition to the FMLA requirements, be sure to check your state laws as well as your own personnel policies.
In terms of the part-time job question, pregnancy is considered a condition, not a job (even when there is compensation involved). All pregnant women should be treated the same, regardless of why they are pregnant or what will happen to the baby.
And, no, the pregnant woman has not taken a second job that conflicts with her current position.
Now as for that baby shower . . .
Ask Rita in HR is a column in Blue Avocado written by Pamela Fyfe and Ellen Aldridge, two HR attorneys at the Nonprofits Insurance Alliance Group. They advise nonprofits on a wide range of employment law to help keep them out of court.